Lord de Mauley: , having received a Writ of Summons in accordance with Standing Order 10 (Hereditary Peers; by-elections) following the death of Lord Burnham—took the Oath.

Lord Warner: My Lords, I am sure that primary care trusts will consider that issue when they consider services for the health of prisoners. I can reassure my noble friend by saying that the Government have put extra resources into prison healthcare. About £40 million extra will be spent over the next year or two in strengthening those services.

Baroness Royall of Blaisdon: My Lords, I welcome the information given by my noble friend the Minister, but I regret the fact that there are still some people who have to stay in mixed-sex wards. What are the Government doing in the interim period to ensure that the dignity and privacy of patients who have to be in those wards are maintained?

Lord Warner: My Lords, I shall pick up a matter raised by the noble Baroness, Lady Knight—namely, the misreporting she described which, I think, appeared in the Sunday Telegraph. As was clear in that misleading newspaper report, it is always inevitable that there will be some clinical emergencies whereby hospitals have to take the most appropriate action for the patients involved. We are using the hospital building programme, on which the party opposite are usually notably silent, to improve the accommodation. While this Government have been in office, we have spent some £250 million on improving patients' privacy and dignity.

Baroness Barker: My Lords, the Minister will be aware of the MIND report in September 2004, in which 25 per cent of mental health patients recorded having been in mixed-sex wards. Can he confirm that there is still a significant number of children and young people who are held in mixed-sex psychiatric wards?

Baroness Sharples: My Lords, is the Minister aware that, last year, I stayed in one of the 3 per cent hospitals to which he referred, and that I was in a mixed ward? I agree with the noble Baroness opposite. It was extremely embarrassing; we all felt very uncomfortable.

Lord Warner: My Lords, people have a right to come here to train. We have a long tradition of helping doctors from around the world both to become trained and qualified and to improve their postgraduate qualifications. I say to the noble Lord that the number of home graduates accepted to study medicine in the UK increased from 281 in the 1994 intake to 1,303 in 2003. Therefore, the increase in numbers in our medical training schools comes predominantly from people from within this country, and we have undertakings and understandings with different countries not to over-attract people to come to work in this country, thus denuding them of medical and nursing expertise.

Lord Tomlinson: My Lords, I declare an interest as chairman of the London School of Commerce. Is my noble friend aware that overseas students should not only be encouraged to our universities but also to the high-quality private providers who are working collaboratively with British universities? Is he also aware that the greatest encouragement to both those entering the universities and the private sector of higher education is the significant progress made in recent months by UK Visas in achieving a much smoother pattern in the issue of UK visas? I hope that my noble friend will assure the House that that progress will continue.

Lord Filkin: My Lords, yes, I can. UK Visas has committed to raising its standards as part of the service. Of course, the fundamental question is how much the noble Lord, Lord Renton, believes that taxpayers should subsidise the cost of administering visas to foreign students. Does he believe that the taxpayers should subsidise them totally or only in part, as we are currently proposing to do? The big issue is the enormous expansion that has taken place in HE and FE education over the past five years. We have almost doubled the value of UK educational exports in this country and we intend to go further, in partnership with private sector providers, as was signalled, and we are confident that we will be able to do so, as the Chancellor recently indicated.

Lord Filkin: My Lords, I never want the House to take too much heart from anything I say from the Dispatch Box. There is a danger of getting the issue out of proportion. The question is how much taxpayers should subsidise foreign students and whether we believe that there will be a continuing expansion in the strength of UK educational exports. Yes, we do.
	Furthermore, I would be disappointed if within a month's time we did not announce the next phase of the Prime Minister's initiative on going further in partnership with higher education, further education and business both to attract more students and also to look at how we can promote exports of education through other means rather than simply the direct import of students into the country, important though that is.

Moved accordingly, and, on Question, Motion agreed to.
	:TITLE3:COMMONS AMENDMENTS
	[The page and line references are to Bill 18, the Bill as first printed for the Commons.]
	The text of all the amendments can be found at: http://www.publications.parliament.uk/pa/ld200405/ldbills/035/05035.1-4.html and subsequent pages.
	:TITLE3:COMMONS AMENDMENT
	1 Clause 2, leave out Clause 2

Lord Falconer of Thoroton: My Lords, that is a very sensible idea. I am more than happy with that suggestion.
	Your Lordships have spent much time considering both the issue of "Lord", if I may call it that, and the issue of "lawyer". I urge noble Lords to reconsider your earlier position; to listen afresh to the arguments that we debated in some detail previously; to note and to listen to the other place and the arguments that were advanced to and fro there; and to note as well the overwhelming support in the other place for removing Clause 2 of the Bill and the restriction that the office holder must be a lawyer who is also in the other place.
	In the year since the Bill was first introduced in this place, a huge amount of progress has been made. The concordat, which we debated at length while the Bill was passing through this House, has been referred to as an "historic" agreement, and I would agree. We have agreed in this place to significant reforms in setting up an independent Judicial Appointments Commission, a new United Kingdom Supreme Court and a fundamentally reformed office of Lord Chancellor. I am very grateful to the noble Lord, Lord Kingsland, for his acceptance on behalf of those opposite of, as he described it, the "new architecture of the office of Lord Chancellor". We have also accepted on this side of the House that the office of Lord Chancellor should remain, albeit with "the new architecture"—to use the words of the noble Lord, Lord Kingsland.
	Looking back at the debates we have had on this issue, it seems to me that there is also agreement that the purely ministerial nature of the Lord Chancellor's role in the concordat does not lead inexorably to the conclusion that he or she could fulfil that role only by being a Member of this place. Accountability can be provided in either House for those functions. I think that we are also agreed that the use of the word "Lord" in the title of "Lord Chancellor" need not be confined to a Member of this place. We discussed previously the example of the Lord Privy Seal who could be in the other place, albeit described as a Lord.
	The agreement in this place goes further. The special roles of the Lord Chancellor, on which we all agree in terms of the rule of law and judicial independence, will require a special person. The holder of that office will need to be strong and independent, with sound judgment and wide experience.
	Our differences come down to two issues: whether statutory provisions requiring the Lord Chancellor to be a Member of this place and an experienced lawyer—which is dealt with in the next group—will help or hinder the appointment of the best person for the job in terms of fulfilling that special role. Our argument, which I believe is right, is that such provision can only hinder our efforts to ensure that the best person for the job is appointed to fulfil the role.
	I shall set out the many reasons that have led me to the conclusion that the amendment from the other place to remove Clause 2 should be accepted and that we should also remove the requirement for "lawyer" in Clause 3.
	The main reasons put forward in support of what was Clause 2 of the Bill have involved references to making sure that the Lord Chancellor is not in the "hurly-burly" or "political fray" of the other place, or is not—to use another phase used in the debate—"climbing the greasy pole". I believe that the assumption that that will be achieved by preventing the Lord Chancellor from being a Member of the other place is fundamentally wrong.
	I say in parenthesis that this place in 2005 feels very different from how it felt in 1997. I have no idea how different it feels to those who have been here since a very long time before that. I draw attention to one example. Would it have been normal 30 or 40 years ago to have the political debates that are currently criss-crossing the Dispatch Box, in the widespread belief—accurate or not I know not—that a general election is coming? Would a Member of the Conservative Front Bench put down a Question, as the noble Baroness, Lady Hanham, did yesterday, on whether the Front Bench on this side of the House were going to purloin the Conservatives' policy on providing council tax relief for old-age pensioners?
	I would respectfully suggest that this place has changed fundamentally. The way that this place now operates is based on coalitions between the three parties. Although they are changing coalitions, this is essentially a much more political place than it was five, 10 or 20 years ago.
	The other aspect of the argument assumes that all Members of this place are older, towards the end of their careers, not looking for political advancement and very experienced, and that all Members of the other place necessarily are not in that position. That is clearly not the case and does a disservice to your Lordships' House and to Members of the other place.
	I cannot understand why Members of this place think that all Members of the other place are so unsuitable for the office and that there should be an absolute statutory bar to exclude all of them unless they are willing to resign their seat and come to this House as though that were the only appropriate solution. What is so wrong with elected representatives that—leaving aside Clause 3 for a moment, which is the lawyer one—any person who becomes a Member of this place should be eligible for an office while an elected representative should not be?
	We all know that Secretaries of State in the other place also exercise functions that require impartial decisions to be made on their merits. My right honourable friend the Deputy Prime Minister exercises quasi-judicial functions under the Town and Country Planning Act in determining planning appeals, yet I hear no one questioning whether he and his predecessors who have fulfilled that important role in planning are fit to carry out that work because they are Members of the other place.
	My right honourable friend the Secretary of State for Work and Pensions has responsibility for decisions made on awarding benefits—a responsibility that is vital to ensure that those in need get the benefits to which they are entitled. Yet I hear no one question whether the Secretary of State for Work and Pensions should be a Member of this place rather than the other place. Some would argue, although I am not one of them, that the Attorney-General should be a Member of the other place, despite the nature of his role as the ultimate source of legal advice to the Government.
	To describe a Lord Chancellor from the other place as a "political appointee" is to forget that all Lord Chancellors have been political appointees in a similar sense. On the whole, the system has served us well. It is also to forget that many Members of this place are political appointees of one kind or another.
	As for the other place being a "hurly-burly" of activity, I wonder, as I said earlier, whether your Lordships have reconsidered that, given the attention that proceedings in this place have had in recent months and the changes that have occurred in recent years.
	The office of Lord Chancellor has evolved over time. For example, we have escaped the tyranny of having to have a Bishop as Lord Chancellor. It continues to evolve.

Lord Falconer of Thoroton: I apologise to the Bishops, my Lords.
	The department for which the Lord Chancellor is responsible is now responsible for a budget, as I have said on many previous occasions, of £3 billion. It continues to evolve with the magistrates' courts coming within its remit from next month. And this place continues to evolve. A statutory prohibition on the Lord Chancellor being a Member of the other place would, in my view, prevent the office evolving over time in response to the reforms on which we are all agreed.
	We cannot legislate to ensure that the best person for the job is appointed; if we could, we would have done so already. Clause 2 may prevent someone whom your Lordships may consider strong and eminently suited to the office from accepting it because he also wants to continue to serve his constituents, and his constituents may continue to want him to be their representative.
	I have outlined my strong conviction, but many others share my view that it is the person who holds the office that is important, not where he is a Member. Perhaps I may quote from the recent Constitutional Affairs Select Committee report on this. It stated:
	"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House".
	I move on to the second aspect of the debate, as the noble Lord, Lord Kingsland, suggested. I detected from earlier debates that some of your Lordships have formed the view that legal qualifications or knowledge gained through practice at the Bar, or being a judge, is needed to carry out the functions in the concordat effectively. As I have said, that is plainly not the case. The ministerial role for the Lord Chancellor in the concordat simply does not require that.
	The Judicial Appointments Commission will be formed of people who are skilled in determining whether candidates for judicial office possess the relevant skills and experience. The Lord Chancellor will not need a legal qualification or a prescribed period of experience in legal practice to judge the merit of candidates, and the system is set up to ensure that any personal knowledge the Lord Chancellor has of candidates will not prejudice the selection process. Indeed, one purpose in creating a Judicial Appointments Commission is so that it will not be one person's knowledge—which, inevitably, will be intense in some areas but not in others—driving the process of judicial appointments.
	The Attorney-General is the legal adviser to the Cabinet. He advises all Ministers and he can advise the Lord Chancellor. Should any legal issues arise about the operation of the process itself, the Department for Constitutional Affairs has a team of legal advisers, like any other government department.
	So that leaves us again with the Lord Chancellor's special role in relation to the rule of law and independence of the judiciary. I am convinced that sound judgment in those matters does not depend on the application of forensic legal skills. What is needed is judgment, intellect, courage, stature and independence; an appreciation of our constitution and respect for its principles. It is those characteristics that have served Lord Chancellors, as they have served impressive political Ministers, so well over the ages. While many politicians and Lord Chancellors have had legal qualifications and experience, for Lord Chancellors, that has been as a result of the judicial functions of the office, which are now no longer to be performed by the Lord Chancellor.
	In recent times, the Lord Chancellor plainly had to be a lawyer and a Lord because he presided over the Judicial Committee of the House of Lords. That requirement has now gone. The skills needed to be a judge are no longer needed by Lord Chancellors. I am certain that, even without their legal qualifications, Lord Chancellors would still have been able to carry out their special functions, and the rule of law and independence of the judiciary would still have their valued place at the heart of our constitution. The Lord Chancellor would be a guardian of that—lawyer or not.
	We have a lot to lose if we reinsert the statutory requirement that was Clause 3. Many eminent people who could uphold the rule of law and independence of the judiciary with exceptional courage and determination may be disqualified. Many excellent legal minds may be disqualified from holding the office because they have pursued an academic career or just miss out on the practising requirement. The last time that we debated this, we identified a significant number of people who were not lawyers who, it was widely regarded throughout the House, would have been excellent defenders of judicial independence and the rule of law. All those people would have been excluded by Clause 3.
	Legal experience does not necessarily mean a person will be the right one for the job. Other experience, such as previous experience as a Minister, are equally important. I have already set out how valuable my prior experience of ministerial office has been to me in my role as Lord Chancellor. I do not think that I need to reiterate the points about what the ministerial role should be. The issue is not about whether a lawyer could be a good Lord Chancellor. We all know, looking at history, that that is the case. The issue here is whether only a very senior lawyer can be a good Lord Chancellor based on a record of sustained legal practice.
	Those are the arguments. We must try to make it as easy as possible to insure that the right person gets the job. Neither of these limitations achieves that.Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Falconer of Thoroton.)

Lord Kingsland: My Lords, I shall speak also to Amendments Nos. 264, 265 and 593 and to Amendments Nos. 2 and 2A. The issue of Lord and lawyer has already been very fully debated in your Lordships' House on two previous occasions: first, in Committee on 13 July, I think, and, secondly, on Report on 7 December. On both occasions, the debate ended in a vote.
	Off the Bill went and now it has come back with another place disagreeing with our belief that future Lord Chancellors should continue to be both Lords and lawyers. I do not need this afternoon to argue again the full case that was so beautifully argued by so many of your Lordships. I simply want to remind your Lordships of what I think are the key issues.
	Your Lordships will recall that, when the Bill first came to us, the Minister who was to be responsible for its operation was the Secretary of State for Constitutional Affairs. Your Lordships were left in no doubt that future Secretaries of State for Constitutional Affairs would inhabit another place and would, in all likelihood, not be lawyers. We had a flavour of the status of future Secretaries of State by observing the status of the present Secretary of State for Constitutional Affairs, which is rather low in the hierarchy.
	Unexpectedly, it proved impossible for the Government to abolish the position of Lord Chancellor in June 2003; so the noble and learned Lord had added to the end of his title, "and Lord Chancellor". I think that he would agree that his main responsibility since appointment has been as a Secretary of State, rather than Lord Chancellor; although I am the first to recognise that he has fulfilled the responsibilities of Lord Chancellor impeccably.
	In the Bill in Committee, there was one crucial omission that has now been rectified and, I am glad to say, accepted by another place. That is the provision in Clause 1 placing a duty on the Lord Chancellor—whom, I am pleased to say, we replaced for the Secretary of State—to observe the rule of law. Clause 1 is headed, "The rule of law" and states:
	"This Act does not adversely affect—
	(a) the existing constitutional principle of the rule of law, or
	(b) the Lord Chancellor's existing constitutional role in relation to that principle".
	Later, in Clause 14, we find that future Lord Chancellors will be required to take an oath. Proposed new subsection (2) to Clause 14(1) states that future Lord Chancellors will,
	"swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary".
	So there have been two important changes since the Bill arrived in your Lordships' House, both of which have been accepted by the noble and learned Lord. The first is that, in future, the Minister will continue to be the Lord Chancellor; the second is that he or she will have a statutory obligation to observe the rule of law and will have taken an oath to that effect. The question before your Lordships, therefore, is whether the office of a future Lord Chancellor—statutorily bound to observe the rule of law and having taken an oath to that effect—is compatible with being a Member of another place.
	I, perhaps, might test your Lordships' patience by dilating for a moment on some recent constitutional history. Your Lordships will remember, in particular, that in the asylum legislation proposed in 2004 there was an attempt to introduce an ouster clause. Your Lordships will also remember that, very recently, in the Prevention of Terrorism Bill, there was an attempt to introduce an open-ended suspension of habeas corpus.
	If the noble and learned Lord the Lord Chancellor had not been primarily the Secretary of State for Constitutional Affairs, but had been primarily the Lord Chancellor with his traditional and conventional responsibilities for the rule of law, neither the ouster clause nor the suspension of habeas corpus would have emerged from the Cabinet. They would never have seen the light of day.
	A traditional Lord Chancellor, charged by convention with his responsibilities for the rule of law, would have stopped his colleagues in their tracks. It was only because the noble and learned Lord was saddled with the primary responsibility of being Secretary of State for Constitutional Affairs that he was unable to do so. Fortunately for the country, your Lordships' House stepped into the shoes of the Lord Chancellor and stopped both the ouster clause and the permanent suspension of habeas corpus.
	Now, the mists have cleared; we find ourselves on the verge of an Act which will enshrine in statute the Lord Chancellor's responsibility to uphold the rule of law. It is my contention that that responsibility is incompatible with membership of another place. Membership of another place—

Lord Kingsland: My Lords, I am most grateful to the noble Lord for his intervention. If he will allow me to continue a little further, I think that he will get the answer to his question. I was about to argue that a Lord Chancellor responsible for upholding the rule of law in statute would find that responsibility incompatible with membership of another place.
	Election to another place on a political mandate, which is to be implemented by a parliamentary majority by the mechanism of parliamentary sovereignty, is a reflection of the will of the electorate. By contrast, the rule of law is that part of our constitution which upholds the right of the minority against the majority. It upholds the right of the individual against the state.
	How can a politician—elected on a popular mandate and bound by the convention of collective responsibility—when one of his colleagues insists that the popular will demands the ouster of the courts or demands the suspension of habeas corpus be part of that popular majority and, at the same time, uphold the rule of law? There must be a fundamental conflict between the statutory requirement of upholding the rule of law and, at the same time, the electoral requirement of doing the bidding of the majority.
	The noble and learned Lord has based the whole Bill on the concept of separation of powers; but what could be a greater confusion of powers than to confuse the principle of parliamentary sovereignty with the principle of the rule of law? If the noble and learned Lord was an elected politician in another place, he would find it impossible to determine to which of the two he owed the greater duty. Therefore, constitutionally, it must be right that the person who defends the rule of law in our constitution is not an elected politician. The doctrine of separation of powers demands that.
	I am also astonished to hear the noble and learned Lord suggest that anyone who is asked to do the job of Lord Chancellor could undertake it without being a lawyer. I am sure that your Lordships have had a very careful look at the Bill. For those of your Lordships who have done so, I am convinced that the inevitable conclusion must be that the post of Lord Chancellor could be undertaken only by someone who was not just a qualified lawyer but also someone who was very experienced in the law.
	The Lord Chancellor will be asked to take the final decision on who should have a judicial appointment. He will be asked to exercise his judgment about the capacity of someone to be a judge. How can he do that without having the professional understanding of what the judicial task is about? The noble and learned Lord the Lord Chancellor shares also myriad responsibilities with respect to the management of the judicial system, including judicial discipline, together with the Lord Chief Justice. How can he do that unless he is a lawyer of equivalent status and standing to the noble and learned Lord the Lord Chief Justice?
	For those reasons alone the Bill demands a lawyer, but there are two additional reasons as well. First, as the noble and learned Lord is well aware, the noble and learned Lord has removed all the judges from your Lordships' House—not only the judges from the Judicial Committee, but also the Lord Chief Justice, the Master of the Rolls and the Lord President. Without those judges the only lawyer left in the other branches of the political system will be the Lord Chancellor. It will be the Lord Chancellor to whom the judges will wish to talk. They will need to talk to someone for whom they have great jurisprudential respect. For that reason as well, the Lord Chancellor will need to be a lawyer.
	Finally, many distinguished non-lawyers made the most compelling speeches in the debate on the Prevention of Terrorism Act. But the detailed analysis of what did or did not comprise the rule of law, in my submission, required legal expertise. The core of the debate about the rule of law in your Lordships' House was a debate about the law; and, indeed, about many extremely sophisticated facets of the law. How can a Minister defend the rule of law unless he has a thorough grasp of its components? In my submission, only a lawyer can do so. So, for those reasons as well, it seems to me inconceivable that your Lordships could come to any other conclusion but that the Lord Chancellor needs to continue to be a lawyer.
	I recall in one of the earlier debates the noble and learned Lord the Lord Chancellor saying that there should be no constraint on the qualifications for Lord Chancellor because the Prime Minister should not be inhibited in his choice of the person for that position. I see the noble and learned Lord nodding in assent. In my submission, that is a bad argument.
	The basis of the argument is that it is wrong that the Prime Minister, in taking any decision about anything in his political universe, should be constrained by anything. The problem for any Prime Minister about a Lord Chancellor who is a lawyer and Lord is that he is a constraint on executive power. I hope that is not the reason why the noble and learned Lord wants to remove that constraint.
	Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Kingsland.)

Lord Lloyd of Berwick: My Lords, in due course, I shall be moving the amendment which stands in my name. However, I understand that it has been agreed for the convenience of the House that we should say all that we have to say now and then move the amendment formally in due course.
	Last December, this House saved the office of Lord Chancellor. I hope that does not sound too melodramatic. It is worth saying again because it has been put about—and was, indeed, put about by the Lord Chancellor himself—that all we had saved was the title of Lord Chancellor. That was never true and I am very glad that the Lord Chancellor has accepted today that it is his view that we have saved the office of Lord Chancellor.
	Historically, as we know, the office has been held by a senior lawyer who has also been a Member of this House. The noble Lord, Lord Kingsland, has dealt primarily with the many arguments in favour of the Lord Chancellor being a Member of this House. I suggest that that convention is now so strong that it ought not to be broken. It is at least as strong, I would suggest, as the parallel convention that the Prime Minister should not be a Member of this House.
	My task is the lesser one of persuading your Lordships that the Lord Chancellor should also be a lawyer, as he has also always been.
	When we voted on 7 December, we voted in favour of retaining the office of Lord Chancellor as traditionally understood, save in two relatively minor respects. First, we agreed that he should no longer sit as a member of the Appellate Committee. But as, since the days of the noble and learned Lord, Lord Mackay of Clashfern, the Lord Chancellor has seldom done that, it was not a great matter.
	Secondly, we agreed that the Lord Chancellor should no longer be the titular head of the judiciary—that title now falls to the Lord Chief Justice. But we intended, at least I believe we intended, that in all other respects the office should continue as before. We intended that the Lord Chancellor should continue to be the head of a great department of state responsible for the administration of justice. We also intended that he should be responsible, as a very senior member of the Cabinet, for representing the views of the judges in Cabinet and defending the rule of law. That is how the great Lord Chancellors of the past have seen their role.
	The House of Commons, by their Amendment No. 2, propose that the Lord Chancellor need no longer be a lawyer. That argument, if accepted, is obviously very important; it would bring about a very important change.
	The arguments in favour of the change seem to be as follows. First, that as the Lord Chancellor is no longer to be a judge, he need no longer be a lawyer. That argument was, indeed, advanced today by the noble and learned Lord the Lord Chancellor. But it is such an obvious non sequitur that it need detain us no further.
	The second argument—the more important argument—is that the Prime Minister should be free to choose the best man for the job. An example that has been given in the past is that if the choice lay between a Roy Jenkins on the one hand and a second-rate lawyer on the other, the Prime Minister should be free to choose Roy Jenkins.
	Thirdly, as no one suggests that the Secretary of State for Defence should be a soldier, that the Secretary of State for Health should be a doctor, or that the Secretary of State for the Environment should be—I suppose—a builder, the argument is: why should the Lord Chancellor be a lawyer? To do the noble and learned Lord the Lord Chancellor justice, he did not advance that third argument before your Lordships today.
	So I am left with the second argument, which I shall try to answer. I have said already that one of the most important—if not the most important—functions of the Lord Chancellor is to be the representative of the judges in Cabinet and a spokesman for their views. Putting it another way, he is to be the intermediary—or, if you like, the bridge—between the Executive on the one hand and the judiciary on the other hand. One does not need to be a far-seeing prophet to realise that that function will have an increasing importance in the years to come.
	To do that job—to act as the intermediary or bridge—effectively, the Lord Chancellor clearly needs not only to have the confidence of the Prime Minister; he also needs to have the confidence of the judges. He will only have that confidence if he knows the legal system inside out before his appointment and if he understands the rule of law, in all its many ramifications, through his long training in the law. Above all, if I may put it this way, he must be a lawyer by instinct; a lawyer with an instinct for justice.
	But even all that is not enough if he is not also a very senior lawyer. Nothing would undermine the confidence of the judiciary more than if the Lord Chancellor was still on the look out for another job; if he was still looking for political preferment when his particular job came to an end. That is why, as has been said so often during these debates, the Lord Chancellor needs to be at the end of his career—or at the peak of his career, put it how you will—and not half-way up the greasy pole.
	It may be said that all that is so obvious; that the Lord Chancellor must so obviously be a lawyer, that it is hardly necessary to say so in the statute. I am not so sure. There is much in the Bill that to me at any rate hardly needs saying, but we have said it. As the noble Baroness, Lady Scotland, is so fond of saying, we are where we are. At the moment we are in the course of modifying the office of Lord Chancellor, but we must do so in such a way as to make clear the limit of those modifications.
	That is why, when the Lord Chief Justice spoke in the debate on 7 December, he said that his own view and the view of the Judges' Council was that the Lord Chancellor should be a lawyer, and ideally should have the same qualifications as a High Court judge. He wanted a requirement to that effect, by which I understood him to mean that he wanted it written in the Bill, which is where it was until Amendment No. 2 was passed in the House of Commons. I suggest that those views should be paid great heed today.
	One last point needs to be made. There is a wider question. The Lord Chancellor is no longer to be the head of the judiciary, but he is still the head of the legal profession, which is far wider than the judiciary, important though the judiciary is. It includes barristers, solicitors, magistrates, magistrates' clerks and, perhaps more important than ever, the court staff. They all look to the Lord Chancellor as the head of their profession. That is how he is seen throughout the common law world, and indeed elsewhere. It would be a tragedy if we were to spoil that image.
	I want to remind your Lordships—and tell those of your Lordships who did not hear it—of what was said by my noble and learned friend Lord Cooke of Thorndon, formerly president of the Court of Appeal of New Zealand, in this House on 11 October. I regret that it is quite a long quotation, but it is so apt and not a single word is wasted. Those who heard him say it will never forget it. He said:
	"What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of Lords and of Cabinet—an illustrious and universally respected lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Official Report, 11/10/04; col. 38.]
	I suggest to your Lordships that that is all that needs be said.

Lord Renton: My Lords, having agreed fully with what the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland said, perhaps I may add a few further factors that arise as a result of my having been in both Houses for nearly 60 years. I should perhaps mention that for all but nine of those years I have been a Queen's Counsel and had at one time a busy practice and a great deal of part-time judicial work.
	During my 34 years in another place there were no fewer than 20 Queen's Counsel spread across the House. In those days plenty of Labour Members were Queen's Counsel, but now there are only 10 Queen's Counsel in the House of Commons and eight of them are Conservatives. However, in your Lordships' House there are 34 Queen's Counsel spread across the House. I am glad to say that there are some in each party and on the Cross Benches who are active and successful in practice.
	Therefore, I feel that the noble and learned Lord, the Lord Chancellor, when presenting his case, overlooked the reality of the situation of the profession. That is regrettable and fundamental. It follows that it would be unwise and impractical not to have the Lord Chancellor in your Lordships' House, as has happened for centuries with success. The repeal of Clause 2, which is what the Government are proposing, would be unwise, impracticable and against the public interest.

The Lord Bishop of Chelmsford: My Lords, the noble and learned Lord the Lord Chancellor reminded us that, deep in our history, these Benches had the office of Lord Chancellor. My understanding is that one or two of them fulfilled the office quite well. I assure him, however, that, despite the difficulties of the Church of England, we have no desire to have it back.
	Our role is to listen carefully to this debate and not to intrude on the legal argument. There are just three things we have to bear in mind. First, there is the history of this Bill. We began with the Government abolishing the post of Lord Chancellor. That having taken place, it is not surprising that this House is exercising some caution in constructing the Bill to ensure that we hem the Executive in from taking unnecessary action of that sort again without legal defence. There is a history to this that we cannot avoid.
	Secondly, the argument this afternoon is about the context, not personal capabilities. Is this House the better context for this office? Having had the privilege of being in this House for nearly six years—despite times such as the present, when political agendas are rather apparent—I have noticed how jealous the House is of its independence, and how important Members find the freedom to make their own judgments and to act accordingly. If we are to have an office whose independence is important—but is a political appointment, and that is a right relationship—we have to ask whether it is the context of the more political agenda that is properly pursued in the other place, and we should not in any way denigrate that, or the context of this House that is appropriate. That is at the heart of the argument.
	Thirdly, constitutional reform should be introduced with great care. In this House we have a duty to watch over the constitution of our country. It might be the judgment of the House that even if we are cautious in this matter and restore these clauses, what we have achieved, from a bad start, is an important piece of constitutional reform that does credit to Parliament, and to the Lord Chancellor. I do not think the restoration of these clauses undermines that achievement.

Lord Falconer of Thoroton: My Lords, I echo the kind words of the noble Lord, Lord Williamson. Lady Strange was indeed a very colourful presence whom we shall all miss very much. She was dedicated to the House of Lords and had a great love for this place and all that it stands for. She entered the House in 1986 and was one of the hereditary Peers to win election to the House in 1999. She will be remembered, as the noble Lord said, for bringing flowers to the House from her home in Perthshire, but of course she will chiefly be remembered for her commitment to the causes that she championed—in particular, foreign affairs and the provision for war widows. She became president of the War Widows' Association in 1990; she was also an author and novelist and continued her passion for writing in her contributions to the inHouse magazine.
	I remember Lady Strange well when she attended the Cenotaph ceremony last November on behalf of the war widows—and my goodness, she was an impressive presence. Her presence here will be greatly missed and I pass on my condolences on behalf of the House to all her family and friends.

Lord Goodhart: My Lords, we on these Benches—with the usual exception of my noble friend Lord Phillips of Sudbury, who may be described as the Helena Kennedy of our party—support Commons Amendments Nos. 1 and 2 and wish to see Clauses 2 and 3 deleted from the Bill.
	The insistence that the Lord Chancellor be a Member of your Lordships' House rather than of the other place makes only one difference; that is, that the person appointed to the office will have no prospect of promotion to Prime Minister, Chancellor of the Exchequer or head of another major government department. Why is that thought to be a good thing? It is asserted by a number of noble Lords, including the noble Viscount, Lord Bledisloe, that it is, but it is surely no guarantee whatever of independence. If the Prime Minister wants a compliant Lord Chancellor, he will surely be able to find one. In any event, ambition to retain an office is a powerful incentive to comply with a Prime Minister's wishes. Someone with no prospect of further promotion may well be an extinct volcano who carries little clout with his colleagues.
	There is no other government department in which drive and ambition can be regarded as a disqualification for holding office. There is no reason why it should be different for the Department for Constitutional Affairs. The DCA needs a strong and effective Cabinet Minister as much as any other department, someone who will fight for legal aid and access to justice and who has the clout to win that fight against his colleagues.
	It is said that the office of Lord Chancellor is different because of his constitutional role as the defender in Cabinet of the rule of law and the independence of the judiciary. In relation to the independence of the judiciary, the role is shared by other Ministers of the Crown. That role is important, but it is amorphous, and it is very hard to pin down what it amounts to. Certainly, my noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who served in the Labour Cabinets of the 1970s, have no recollection of the then-Lord Chancellor Lord Elwyn-Jones ever having raised constitutional issues in Cabinet, and I doubt that he was unique in that respect.
	We are to some extent in danger of confusing the roles of the Lord Chancellor and of the Attorney-General. The Lord Chancellor is not, and never has been, the legal adviser to the government, nor has he been the spokesman for the judiciary in the Cabinet. The role of legal adviser is that of the Attorney-General. It was the Attorney-General, not the Lord Chancellor, who advised the Government on whether the invasion of Iraq would be valid.
	Ironically, there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds. On practical grounds, because the Attorney-General plainly has to be a lawyer and needs to be a respected lawyer in recent practice, something that is inconsistent with membership of the other place; and on constitutional grounds because the government and their legal adviser should be at arm's length from each other. The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way.
	In this debate we have over-rated the future constitutional role of the Lord Chancellor, particularly since he is no longer the head of the judiciary in England and Wales; and under-rated the future constitutional role of both the Attorney-General and, even more so, of the Lord Chief Justice as the head of the English judiciary. In future, it will plainly be the role of the Lord Chief Justice to act as spokesman for the judiciary, and he will be in a stronger position to do so than a Lord Chancellor ever has been. The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as constitutional watchdog in the Cabinet will be as it always has been—informal. That role does not justify excluding the Lord Chancellor from the House of Commons, and thereby frequently excluding the person best qualified for doing the job from doing it.
	I must also say that from outside your Lordships' House most people interested in this issue, including lawyers, would regard it as astonishing that your Lordships' House should insist that the office of Lord Chancellor should be restricted to Members of this House, even when the Lord Chancellor's judicial role is extinct and therefore no longer requires it. If we disagree with the Commons amendment, we will be portrayed as looking to the past and not to the future, and that portrayal would be correct.
	The question of being a lawyer is a related but distinct issue. I see legal qualifications, unlike membership of your Lordships' House, as a positive factor in making the choice of Lord Chancellor. Other things being equal, it is better to have someone who has a legal qualification than not. I expect, therefore, that most Lord Chancellors will in fact have legal qualifications, but that is not essential, and it is surely more important to have the best person to do the job. As I said already, the main role of the Lord Chancellor will be to act as a departmental Minister.
	The role of the Lord Chancellor requires knowledge of general principles of the constitution, rather than strictly legal knowledge. After all, we do not, even now, expect a Lord Chancellor to be an expert in, say, trust law, patent law or commercial law, or any particular branch of the law. Many people who are not lawyers have the kind of knowledge of the constitution that is necessary. I could name from among current Members of your Lordships' House, for example, the noble Lord, Lord Norton of Louth, or my noble friend Lord Holme of Cheltenham.

Lord Falconer of Thoroton: My Lords, some of the burdens that any Lord Chancellor has to bear—as did the noble and learned Lord, Lord Mackay of Clashfern, whom I greatly admire—are the bricks and arrows of the noble and learned Lord, Lord Ackner. They were delivered as viciously to all my predecessors as to me. Without doubt, probably the strongest argument for keeping the Lord Chancellor in the House of Lords is that they are kept up to the mark by the noble and learned Lord, Lord Ackner.
	There are two essential strands in the argument for the Lord Chancellor being a lawyer and a Lord. The first is that one of his jobs—and I accept this—is to uphold the rule of law and the independence of the judiciary, and that only a lawyer could do it. Secondly, that job requires somebody separate from the hurly-burly of politics, brave enough to stand up to all comers. Somebody at the end of his career, not on the greasy pole, is the person to do it.
	First, I shall deal with the rule of law. As the noble Lord, Lord Goodhart, says, the Lord Chancellor is not the legal adviser to the Cabinet. The legal adviser to the Cabinet is the Attorney-General. In years gone by, there probably was friction between the Lord Chancellor and the Attorney-General on who was giving legal advice, but there is absolutely no doubt that the person who gave it should have been the Attorney-General. I can look around the Chamber and see a number of Attorneys-General who, in times gone by, bravely ensured that that was the position. The role of the Lord Chancellor is not to tell the Cabinet what the law is. It is to ensure that the rule of law is upheld. At the heart of the speech of the noble Lord, Lord Kingsland, was the idea that only someone who is not elected can put the rule of law first. I strenuously reject that assertion.
	The rule of law is an essential part of our constitution. It is not a question about the detail of the law, but of accepting that the state must comply with the law. If a court makes an order, the state has to accept it. If the Attorney-General advises the Government that an act contrary to the law will occur, it is the Lord Chancellor's duty to ensure that the Government do not act in that way. But the idea that, to comply with that essential tenet of our constitution, you have to be in this House is, with the greatest respect, absurd. What is more, it is an affront to the civil servants, the House of Commons and all other people who have to deal with the consequences of the rule of law. I emphatically reject the proposition that only people in this House know how to comply with the rule of law. That is not the basis for an argument that could be advanced for saying that the Lord Chancellor has to be in this House.
	The second argument is that, apart from two minor changes—namely, that the Lord Chancellor will no longer be a judge and the head of the judiciary—the Bill has not fundamentally changed the role of the Lord Chancellor. With respect to the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, the Bill has fundamentally changed that role. Until the Bill, that role was to be a judge and, as a judge, head of the judiciary. He sat in the Cabinet not only as a Cabinet Minister, but as the head of the judiciary—the leader of the judges, the person at the apex so far as the judiciary is concerned. The Bill will fundamentally change that, by statute.
	It is not only that the Lord Chancellor will no longer sit as a judge—he will not; the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, were right to say that he had rarely done so in the years before I became Lord Chancellor. Much more fundamentally, the Lord Chancellor is no longer a judge. He is no longer the head of the judiciary. The connection between the judges and the Executive is now not contained in the person of one office-holder, but dealt with by the concordat.
	The noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, failed completely to see that the concordat represents a fundamental change. The noble and learned Lord the Lord Chief Justice and I have reached an agreement—one that this House and the Commons have endorsed in the Bill—that, from now on, the relations between the judiciary and the Executive should be governed not by the position of the Lord Chancellor, but by the terms of that concordat, with the Lord Chief Justice representing and being the head of the judiciary in England and Wales. To say that there has not been a change is not, I respectfully suggest, to understand what the Bill did and what the effect of the concordat was.
	All that does not detract from the need for the Lord Chancellor to protect the rule of the law and the independence of the judiciary, but there should be a clear understanding that he is not doing it any more as a judge and as head of the judiciary. He is doing it essentially as a politician. We have debated today whether senior lawyers are better defenders of the constitution than senior politicians. I do not know. I look around the Chamber and see senior politicians who have made very considerable personal sacrifices on points of principle. The noble Lord, Lord Carrington, resigned in 1982 on a point of principle. As it happens, no Lord Chancellor in recent times has resigned on a point of principle, and the noble Lord has resigned twice on points of principle. I do not suggest for a moment that the noble Lord should be the next Lord Chancellor; he looks disappointed.
	I am also conscious of the big pay and the large pension that the Lord Chancellor would get if he resigned. However, just as politicians may regard the right thing to do as to act on a point of principle—they do so regularly—it may well be, in the long distant past, that Lord Chancellors wanted to hold on to office come what may, it being the last job in their career. I refer with respect to my predecessor, Lord Birkenhead. When confronted with a letter of resignation signed in blank by the Lord Chief Justice that allowed the government to get rid of the Lord Chief Justice at the flick of a finger—they did so a year later—he protested. It is hard to imagine more of an affront to judicial independence, but he did not resign.
	I do not say that to undermine the many great holders of the office of Lord Chancellor. However, I earnestly ask the House to consider very carefully whether the best defender of the rule of law and the independence of the judiciary should not be decided on the merits of who is available to do the job at the time. If your Lordships can think of people who would not have met the criteria in Clause 2 and the former Clause 3—respectively, to be a Lord and a lawyer—who would have the courage, judgment, intellect and stature to uphold the rule of law and defend the independence of the judiciary, and would have made a good Minister, they should agree with the amendment from another place.
	If noble Lords cannot imagine people who would not fulfil those criteria, they should vote for the amendments tabled by the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lloyd of Berwick. However, I respectfully ask the House to consider what we did and agreed to in the Bill. It should consider the effect of the change, and respect politicians for their ability to recognise the rule of law and do an heroic job in another place.

Viscount Bledisloe: My Lords, I should like to ask the noble Baroness about Amendment No. 116. At present, the Bill provides that the Master of the Rolls is the head of civil justice and allows the Lord Chief Justice to appoint a deputy for him. The amendment states that the head of civil justice is to be the Master of the Rolls or, if the Lord Chief Justice appoints another person, that person.
	I see that it is perfectly sensible to have the power to appoint someone else if the Master of the Rolls does not want to do the job, but it seems rather demeaning to the Master of the Rolls who, until now has always been regarded as an equivalent of the Lord Chief Justice, that the Lord Chief Justice can take away that function from him in his despite and say, "I am appointing one of your Lord Justices to perform that role, even though you would like to continue doing it". Is it really right that the Lord Chief Justice should now be given the power to treat the Master of the Rolls in that rather peremptory and contemptuous manner?

Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87. Amendment No. 87 was originally the second of two amendments tabled by Mr Vaz, Mr Bottomley and three other Members of the Constitutional Affairs Select Committee to give effect to the Select Committee's recommendation that the Judicial Appointments Commission should be under an explicit duty to promote diversity.
	The Government had the opportunity to consider the issues raised with Mr Vas and with the judiciary. In the course of those discussions, we came to the view that the purposes of the second amendment were entirely in line with the Government's thinking about the commission's role in increasing the range of applicants for appointment, yet escaped the possible problems of statutory provision on this topic. When the amendment was not reached in Committee on 1 March, it was therefore moved by the Government and accepted without debate but following a vote.
	It will have been clear in the extensive debates on this question that the Government have had considerable reservations about whether a statutory duty of that kind was the right way forward. That is not because we have any doubts about the importance of that issue to the commission's work. We expect the commission to work with the Government and the legal profession to encourage people who believe that they have the qualities and abilities we expect of our judges to put themselves forward for appointment, whatever their background; and to give them confidence that they will receive fair and open treatment. That is the way towards the wider range of judges that we and the judiciary are so keen to see.
	The Government and, indeed, the judiciary were, however, extremely anxious that nothing in the Bill should appear to detract from the main principle in judicial appointments; namely, that all appointments should be made solely on merit. That is why we had originally planned to deal with diversity issues in guidance rather than in the Bill itself.
	Careful consideration of this amendment has convinced the Government that it escapes the possible problems of statutory provision. First, the new duty escapes the most substantial problem of diluting the merit principle since it is expressly subject to the overriding duty to select on merit. Moreover, the new clause focuses on the separate topic of efforts to ensure that the widest range of applicants come forward.
	There is another risk in provision in the Bill of the new duty being inflexible and insufficiently responsive to changing need. We consider that the new duty is also drafted in sufficiently general terms so as not to hamper the commission and to enable it to respond creatively over the years to changing perceptions of the problems and of their solutions.
	I am therefore of the view that the new clause enhances the Bill. Our discussions with the judiciary indicate that it, too, regards this as a positive improvement. Indeed, the Lord Chief Justice and the Judges' Council Working Party on constitutional reform, chaired by Lady Justice Arden, were consulted about the amendment and confirmed their support for this extension of the commission's statutory remit.
	They are satisfied that Clause 57 does not dilute the commission's duty to make appointments solely on merit. The Lord Chief Justice has consistently made clear that he hopes the commission will actively seek to widen the field of candidates from which judicial appointments are made. He sees that as an important element of the current drive to increase judicial diversity.
	That is why, when it became clear in the circumstances of the final stages of the Bill in the Commons, where the Government were faced with the choice of losing the amendment completely or adopting it by having it formally moved by a Minister, the Government chose the latter. The House authorities and the Opposition spokesmen were, of course, informed of that contingency. But I accept that in the latter case, this might have happened at rather a late stage.
	I am therefore happy to commend this amendment to the House. I am satisfied that the amendment, which is expressed to be clearly subject to the clause dealing with selection on merit, runs none of the risks that I identified in relation to the first amendment. In the light of that explanation, I hope that noble Lords will feel able to accept the amendment.
	Moved, That the House do agree with the Commons in their Amendment No. 87.—(Baroness Ashton of Upholland.)

Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 217 to 222. This is the first of a set of three groups of amendments reflecting work done to ensure that the concordat provisions are clearly and fully expressed and that the involvement of the Scottish and Northern Irish judiciary is properly allowed for in relation to tribunal appointments where most of the sittings will be in those jurisdictions.
	In addressing all this, we were advised that the clarity of the provisions in the Bill would be enhanced by some reordering, hence the new clauses in the next two groups. The amendments in the first group are mainly drafting amendments and are all minor, but the provisions they amend are important since Clause 94 puts a judicial disciplinary system on a statutory basis for the very first time.
	The judicial disciplinary system will involve both the Lord Chancellor and the Lord Chief Justice working together. The Lord Chancellor will have the power to remove judicial office holders below the level of the High Court, with the agreement of the Lord Chief Justice. The Lord Chief Justice will have the power to give formal advice, warnings or reprimands to judicial office holders as a result of the disciplinary process, with the agreement of the Lord Chancellor.
	These provisions faithfully reflect the concordat agreed with the judiciary. They build on the system that already exists but involve the Lord Chief Justice more fully in decisions to reflect the fact that he will be head of the judiciary. The Lord Chancellor's continuing role in disciplinary matters reflects the need for a Minister accountable to Parliament and as a representative of the public interest.
	The more detailed framework of the disciplinary process will be contained in regulations made by the Lord Chief Justice with the agreement of the Lord Chancellor under Clause 96. The Lord Chief Justice also has the power under Clause 98 to make subordinate rules with the agreement of the Lord Chancellor which must be published but are not subject to parliamentary approval. That is because we envisage that the rules will contain a higher level of detail about how complaints and disciplinary procedures will work and may need to be revised and reissued fairly regularly.
	Amendment No. 217 removes the possible problem of the drafting of the existing Clause 94 by making it clear that the provision in Clause 94(2) that the Lord Chief Justice may exercise his disciplinary powers only with the agreement of the Minister and in accordance with prescribed procedures does not affect what the Lord Chief Justice may do informally.
	Amendments Nos. 218 and 220 correct references to disciplinary procedures and replace them with references to prescribed procedures. Amendment No. 221 clarifies the effect of suspending a judge. Clause 94 allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judge in certain circumstances when the judge is subject to disciplinary procedures. The amendment makes it clear that a judge who is suspended may not exercise the functions of his office but that his other rights are unaffected.
	Amendment No. 222 makes it clear that disciplinary regulations made by the Lord Chief Justice will define when someone is subject to prescribed procedures or is under investigation for an offence. That will govern the exercise of the new power in Clause 94(7) which allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judicial office holder in those circumstances.
	Moved, That the House to agree with the Commons in their Amendments Nos. 217 to 222.—(Baroness Ashton of Upholland.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 250 to 253. This is a small group of minor and technical amendments to Clause 104, which provides relevant definitions in relation to Part 4 of the Bill dealing with judicial appointments and discipline.
	Amendments Nos. 250 and 251 make it clear that references to the High Court and to a Lord Justice of Appeal in Part 4 relate to England and Wales and not to the identically named institutions in Northern Ireland, which will have its own separate Judicial Appointments Commission.
	Amendment No. 252 clarifies the definition of "prescribed" by making it clear that the power of the Lord Chief Justice to prescribe matters by disciplinary rules under Clause 98 is subject to the restriction of those powers in Clause 98(2), which requires certain matters to be dealt with in regulations, subject to parliamentary approval.
	Amendment No. 253 defines when a vacancy occurs for the purposes of the provisions in relation to judicial appointments. The Lord Chancellor will have a statutory duty to make appointments to fill any vacancies except where the Lord Chief Justice agrees otherwise.
	Moved, That this House do agree with the Commons in their Amendments Nos. 250 to 253.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 254 to 263. I speak to Amendments Nos. 254 to 263 and Amendment No. 589 which amend the Justice (Northern Ireland) Act 2002 to make provision in relation to the new office of the Northern Ireland Judicial Appointments Ombudsman and to provide a statutory power of disclosure of information, held by permitted persons, to the Northern Ireland Judicial Appointments Commission.
	Amendment No. 254 inserts a new Section 5A into the 2002 Act to make provision for disclosure of information by permitted persons—for example, the police—to be made to the Northern Ireland Judicial Appointments Commission.
	Amendments Nos. 255 to 263 establish the ombudsman's office and provide an interpretation of the different types of complaint which may be made to the ombudsman. They require the Northern Ireland Judicial Appointments Commission and the Lord Chancellor each to make arrangements for handling complaints made to them in relation to judicial appointments and provide the time limits within which the ombudsman may investigate a complaint where he considers an investigation necessary. Such a complaint essentially relates to appointments to a listed judicial office—that is, High Court judge and below. The ombudsman also has discretion whether or not to investigate complaints received at any other time. Any complaint made to the ombudsman must be in a form approved by him.
	The amendments also make transitional provision to allow for an ongoing complaint to be transferred from the Northern Ireland commissioner to the Northern Ireland ombudsman upon the commencement of this section. The amendments provide that the ombudsman must prepare a report in relation to any complaint investigated by him, and in his report he may make recommendations for action to be taken by the commission or by the Lord Chancellor, including the payment of compensation. They provide that the ombudsman shall send his report in draft to the Lord Chancellor, and, if the complaint related to the Judicial Appointments Commission, to the Commission also.
	Before finalising his report, the ombudsman must have regard to any proposals they make for amendment, and if their proposals are not reflected in his final report he must include a statement of those proposals.
	In addition to sending the finalised report to the Lord Chancellor and, where appropriate, the commission, the ombudsman shall send a copy to the complainant. The Lord Chancellor may refer to the ombudsman any matters related to the commission's procedure, and the ombudsman must report on his investigation to the Lord Chancellor. The amendments also require the commission and the Lord Chancellor to provide the ombudsman with such information or documentation that he may need to perform his functions.
	The amendments also provide that any person who obtains confidential information, or to whom such information is provided, in relation to judicial appointments and discipline, must not disclose that confidential information without lawful authority. In addition, Amendment No. 589 inserts New Clause 3A into the 2002 Act which makes further provision in relation to qualification, tenure of office and powers of the ombudsman. I beg to move.
	Moved, That the House do agree with the Commons in their Amendments Nos. 254 to 263.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 266.
	This group deals with miscellaneous technical amendments to the general clauses and schedules at the end of the Bill. Examples of what some of these amendments do are as follows. Amendment No. 266 is a technical amendment that provides that the reference to enactment in Clause 18 includes Northern Ireland legislation. Amendment No. 272 provides for the affirmative resolution procedure to apply to orders under Clause 16. Other amendments in this group insert references into, or remove unnecessary references from, Schedule 15, the schedule of appeal. These amendments are purely consequential to the amendments made to Schedules 1, 4 and 14.
	Moved, That the House do agree with the Commons in their Amendment No. 266.—(Lord Falconer)

On Question, Motion agreed to.

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 267 to 278. I have spoken to these amendments with Amendments Nos. 3, 4, 30 and 266.
	Moved, That the House do agree with the Commons in their Amendments Nos. 267 to 278.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 279. This is the privilege amendment.
	Moved, That the House do agree with the Commons in their Amendment No. 279.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 280 to 287. I have spoken to these amendments with Amendment No. 3.
	Moved, That the House do agree with the Commons in their Amendments Nos. 280 to 287.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 288 and 289. These are purely technical amendments to Schedule 1.
	Moved, That the House do agree with the Commons in their Amendments Nos. 288 and 289.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 290 and 291. I have spoken to these amendments with Amendment No. 3.
	Moved, That the House do agree with the Commons in their Amendments Nos. 290 and 291.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 292 and 293.
	These amendments introduce a further exception to the general rule of concurrence in the practice direction functions of the Lord Chief Justice and the Lord Chancellor. This will bring the procedures fully into line with the concordat. At present, Schedule 2 of the Bill provides a uniform mechanism for making practice directions across all jurisdictions and at all levels of court. It provides that the Lord Chief Justice make practice directions with the concurrence of the Lord Chancellor, except where those directions relate to the application and interpretation of the law or judicial decision-making.
	The exception to this general approach agreed in the concordat is where the practice direction relates to deciding the appropriate level of judge to hear particular classes of case. It was agreed that, for these directions, the Lord Chief Justice would only be required to consult with the Lord Chancellor, rather than seek his concurrence.
	Amendments Nos. 292 and 293, and 296 to 298, agreed with the Lord Chief Justice, qualify the existing practice direction, making mechanisms in Schedule 2 of the Bill in relation to this class of practice direction. In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than being required to give consent. This is in recognition of the fact that these kinds of directions are essentially matters for the judiciary, taking into account any ministerial view.
	Moved, That the House do agree with the Commons in their Amendments Nos. 292 and 293.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 190. The amendment is grouped with Amendments Nos. 494, 508 to 511, 513 and 516. This is a group of minor technical amendments which tidy up Schedule 10.
	Moved, That the House do agree with the Commons in their Amendment No. 190.—(Lord Falconer of Thoroton.)

Lord Walton of Detchant: My Lords, in moving the amendment, to which the noble Lords, Lord Carlile of Berriew and Lord Brennan, have added their names, I make it clear at the outset that there is no intention on our part to wreck the Bill. It is an extremely important Bill, and I am sure that all noble Lords wish to see it on the statute book at the earliest possible moment. I believe, too, that the objectives underlying the Bill, which the department and the noble Baronesses, Lady Ashton and Lady Andrews, have proposed, are ones that I and my colleagues share. However, the question that I have to put to your Lordships' House is whether the Bill as drafted fulfils those objectives, or whether there are any flaws or loopholes that need to be corrected.
	I turn to the report of the Select Committee on Medical Ethics, which I had the privilege of chairing in 1993. We reported to this House in 1994, and the report was accepted by the House. I believe that it is relevant to mention some of the recommendations of that Select Committee, which were accepted by the House in a full and comprehensive debate.
	First, the report accepted that informed consent is at the core of medical practice and that it is the patients' responsibility, having had all the implications of a form of treatment explained to them, to determine whether to accept that treatment. But we made it clear at that time, in accordance with the views expressed by a very large number of religious organisations, that any competent patient was fully entitled to refuse medical treatment after a full and detailed explanation, even if that refusal ultimately resulted in death, and we did not regard that as tantamount to suicide or assisted suicide.
	Let me explain how we defined euthanasia. Of course, the original meaning of the term was simply a "gentle, easy death", but as years have gone by the term has come to be regarded as indicating a positive act intended to end the life of the individual, and an act that could have no other result than to cause death. "Voluntary euthanasia" was defined as when that act was carried out at the specific and carefully considered request of the individual who had asked for that to be undertaken. "Non-voluntary euthanasia" we defined as a situation in which an incompetent patient, unable to give or withhold consent, was subject to euthanasia on the advice and understanding, and with the agreement perhaps, of other parties; whereas "involuntary euthanasia" meant the putting to death of an individual who was fully capable of giving or withholding consent, which is totally abhorrent in civilised societies.
	We rejected the term "passive euthanasia" because we preferred to use the term "a treatment-limiting decision". That refers to the ability and recognition that there were circumstances when it was entirely appropriate to withhold or withdraw treatment if it was having no benefit whatever to the well-being of the individual as a person. Of course, one of the most notable cases in which that situation arose was that of Tony Bland, the young man who was crushed in the Hillsborough stadium disaster and who subsequently entered into a permanent vegetative state, meaning that the whole of his cerebral cortex was dead, he had no awareness whatever of his surroundings, he could breathe and his heart continued to beat but he could not swallow and he had been fed for several years with a tube, which gave him food and fluid. That is one of the cases to which I shall return in a moment.
	The Select Committee also promoted and approved the principle of double effect. That means that if it is necessary for a doctor and other members of a healthcare team, in order to relieve pain, distress and suffering, to give such doses of medication, whether pain relief, sedatives or both, which have the secondary consequence of shortening life, that was totally acceptable in law and in medical practice.
	I am grateful to the noble Baronesses, Lady Ashton and Lady Andrews, for the discussions that I have had with them and the correspondence that we have shared. Although there are still differences of opinion between us, I believe that our objectives and hopes in relation to the Bill are the same.
	In Committee, there was some discussion about Clause 4(5) of the Bill that states that an action must not be motivated by a desire to end the life of the individual. At that time, we discussed the crucial difference between on the one hand, intention and purpose, which indicate the objectives and the intended outcome of a particular action, and, on the other hand, motivation and desire, which relate to the reasons why the outcome might be desired. At that time, we did not feel that the clause was sufficiently strong to fulfil the objectives that we wished to see included in the Bill.
	There has been a very striking degree of disagreement between distinguished lawyers on aspects of the Bill. Some of them are strongly in support of our amendment; some of them are very strongly opposed to it. In the past, it has been said that when a lawyer says, "With respect", he means, "I disagree"; when he says, "With great respect", he means, "You're talking through your hat"; and when he says, "With the greatest possible respect", he means, "You've gone off your head". Well, one lawyer said to me, "With the greatest possible respect, I do not think your amendment will fulfil the objectives that you seek". I leave it to the good sense of the House to determine whether that was justified.
	The point that I particularly wish to make is that we are at one with the Government in wishing nothing in the Bill to be taken as legalising euthanasia. I am sure that that is what Clause 58 says. Equally, we do not wish to see anything in the Bill that would justify assisted suicide.
	In the case of Tony Bland, the Select Committee that I had the privilege of chairing considered carefully whether it was right to continue giving him food and fluid by a tube inserted through his nose into his stomach. The universal medical opinion was that it was medical treatment and it was felt at the time that it could be withdrawn like any other medical treatment. But the nurses objected greatly and said that food and fluid were basic human rights that should not be withdrawn under any circumstances. In the end, we came to the conclusion that the outcome desired in the case of Tony Bland would have been equally well achieved by the removal of antibiotics, which were clearly medical treatment. In other words, there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the individual.
	As your Lordships are aware, the case of Tony Bland went to the High Court and the judge recommended that the feeding tube should be removed. It then went to the Appeal Court where three judges agreed, for different reasons. Finally, it came to the Appellate Committee of this House where nine Law Lords expressed their views on the case. As noble Lords are aware, the majority view was that the feeding tube should be removed because in every way it was not in Tony Bland's best interests for feeding to be continued. I believe that certain Law Lords, using the principle of mens rea, concluded that withdrawing the feeding tube intended death; in other words, that in a sense it could be construed as murder. But six of the nine noble and learned Lords did not suggest that that decision intended death, even though death was foreseen as a consequence of the action. They said that continuing treatment was not in Bland's best interests and could be construed as being harmful or burdensome to him.
	Since that time, any request for the removal of the feeding tube of a patient in a permanent vegetative state, which has been considered by the healthcare team in consultation with the family and those close to the individual, has had to be referred to the High Court.
	The purpose of our amendment is to make absolutely clear that an advance directive, however framed, could not be used to justify assisted suicide because, under Clause 26, advance directive decisions must be complied with even if they are against the patient's best interests. This is a fundamental feature of the Bill. New safeguards in relation to advance decisions have been added by the Government. They provide significantly more safeguards than are now available under the common law, but they may make it impossible for doctors to argue that an openly and explicitly suicidal advance decision is invalid because it was made with a disturbed mind. This is something upon which I seek the comments and consideration of the Government.
	I confess that I have been very puzzled by a letter that I know many noble Lords have received from the noble Baroness, Lady Ashton, about the adverse effects of the amendment that other noble Lords and I have tabled. In response to the view of the noble Baroness, Lady Ashton, that the amendment,
	"would allow doctors to force non-beneficial treatment on patients in their last dying days",
	the distinguished lawyer, Professor Finnis, has stated:
	"It would not in any way permit this".
	Similarly, it has been suggested to us by the BMA and lawyers advising it, that our amendment, as currently drafted, could be used to overturn the Bland judgment. Lawyers whom I have consulted say that there is nothing in subsection (2) of the amendment to prevent an assessment based upon best interests, as was concluded by six of the nine Law Lords in Bland who reached their decision without conflicting with subsection (1).
	Finally, there is a suggestion in the letter from the noble Baroness, Lady Ashton, that accepting this amendment would overturn the principle of double effect. The point of subsection (2) in the amendment is to enshrine the long-established and well-accepted doctrine of double effect. The revised wording makes it even plainer. The doctrine of double effect has two aspects. It excludes the purpose of causing death and it allows death to be knowingly caused as a side-effect; in other words, a distinction must be drawn between the intention underlying an action on one hand and the consequences that may be foreseen but are not intended on the other. I believe that our amendment deals with that issue satisfactorily.
	I look forward to hearing the Government's response. There has been a sincere and serious difference of opinion between lawyers on this. Some of them support the amendment and some of them feel that it is flawed and that it is unlikely to improve the Bill or to fulfil the objectives of preventing euthanasia and assisted suicide, of maintaining support for the principle of double effect and of dealing with the question of withholding or withdrawing treatment in appropriate circumstances in the light of the medical situation. I beg to move.

Lord Carlile of Berriew: My Lords, it is always a pleasure to follow the noble Lord, Lord Walton of Detchant. He deploys his understanding of medical ethics alongside his medical knowledge with great skill, which guides us all for much of our time here. I apologise at the outset, as I have already to the Minister, if I am absent at some inappropriate moments later in the debate. I must deal with another public duty.
	I confirm that it is not the intention of those of us who put our names to the new clause to wreck this extremely important Bill; very far from it. I have had the privilege recently of chairing the Joint Committee on the draft Mental Health Bill, which has still to report. I can properly say to the House that in that committee we will, as we have done throughout, recognise the great importance of this Bill as part of the reform of law affecting an important group of people in this country. The noble Lords, Lord Carter and Lord Rix, who are members of the Joint Committee on the Mental Health Bill, have certainly brought home to me how important this Bill is. I have been deeply grateful to both of them and to others.
	I have also had the privilege of serving on the also still-to-report committee on the Assisted Dying for the Terminally Ill Bill, chaired by the noble and leaned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place. He would confirm, without giving anything away, that we have wrestled there—and I mean wrestled—with some extremely difficult issues. They are the same issues that give rise to the new clause, on which I and the noble Lord, Lord Brennan, have added our names to that of the noble Lord, Lord Walton.
	I make it clear too at the outset that it certainly is not part of my intention, as the noble Lord, Lord Walton, said is also true of him, to overturn the Bland judgment in any way. We are lucky to have in the House sitting in front of me my noble friend Lord Lester, who was the amicus curiae, the friend of the court, in that hearing before the judicial committee of this House, and he can speak with great authority about it. I will make seven short points, which I hope will be capable of confirmation by the Minister. What she says as a Minister in this debate in this House may prove to be of considerable importance in the courts, lest there be any sense of ambiguity. Frankly, along with others, I seek a Pepper v Hart-type statement from the Minister, which would assist the courts in the future.
	First, it is self-evident, but it needs to be stated in the debate to satisfy me, that this is not a Bill that in any way introduces or permits assisted suicide. Secondly, this is not a Bill that in any way introduces or permits voluntary euthanasia. Thirdly, it is a broader principle that major changes that have deep-running ethical consequences should have separate legislation, particularly in the area of medical ethics. Fourthly, I hope that the Government will recognise that the withholding of treatment for the purposes of avoiding harm or burden to a patient from that treatment is conceptually entirely different from voluntary euthanasia and assisted suicide. It is the sort of work that palliative specialists do all the time. It is entirely appropriate, and it is an intellectual quantum leap away from voluntary euthanasia and assisted suicide.
	The fifth point is that I hope that the Minister will be able to give an assurance, so it is absolutely clear, that the law has not changed in that sense. Those who practise or encourage assisted suicide or voluntary euthanasia within the jurisdiction of the courts of this country remain at risk of prosecution after this Bill, just as they did before this Bill, together with an assurance that such prosecutions are fully considered by the Director of Public Prosecutions and the Crown Prosecution Service. I say that because it is important to avoid what could become a slippery slope given the emotion that the issues can raise and the misleading descriptions of events that often appear in newspapers. My sixth point is that I hope that the Government will confirm their determination that all powers exercised by third parties over the affairs of others will remain subject to the highest standards of scrutiny.
	Finally, I hope that the Government recognise that what, when well, we anticipate of a fatal condition may be significantly different from what, when ill, we face in a fatal condition. I believe that to be a truism, and if so, then prior statements should of course be respected, but it should be clear that they are not always accepted. Circumstances may well change between the anticipation of a fatal illness and the experience of a fatal illness, and the affected person's state of mind may have changed with the circumstances. I shall be satisfied if assurances to that effect are forthcoming from the Minister. Many people who hold the same viewpoint as me about voluntary euthanasia and assisted suicide will likewise be reassured.

Lord Lester of Herne Hill: My Lords, my only qualification for taking part in the debate is that I was amicus curiae in the Bland case, as has been said. I hope to address the House more in that capacity than in taking sides of any political nature. To prepare for the debate, I reread Bland and the cases used. I shall try, in a brief and non-technical way, to explain what I consider to be the existing English law and why I believe that the amendment will not be capable of achieving its intended effects, in the end. I say that with the greatest possible respect.
	The Bill as it stands gives proper effect to the principles of English law that were recognised and developed by the courts and upheld by the five Law Lords—not nine; I do not know where another four have been found by anyone. There were only five of them, but they were unanimous. They upheld clear principles in Bland in 1993. The Bill also gives proper effect to the recommendations made by the Select Committee on Medical Ethics that were summarised clearly by the noble Lord, Lord, Lord Walton of Detchant, in his opening speech.
	Bland would effectively be overruled by the amendment. The amendment is not in accordance with the principles that have been stated by the courts, as I shall try briefly to explain, and would upset the necessary and sensitive balance between the sanctity of human life, the individual patient's right to self determination—to decide whether to accept or reject medical treatment—and to dignity, all of which have been referred to by the courts and, in the case of a patient who lacks mental capacity to express his or her own wishes or to express those wishes when the patient had capacity, the duty of the doctor to give or withhold treatment according to what appears to be in the best interests of the patient.
	Perhaps I may briefly explain. In Bland, the central question was whether artificial feeding and antibiotic drugs might lawfully be withheld from an insensate patient with no hope of recovery when it was known that if that were done the patient would shortly thereafter die. The five Law Lords made it clear that euthanasia by means of positive steps to end a patient's life, such as administering drugs by lethal injection to bring about the death of the old and infirm, the mentally defective or the physically imperfect, is unlawful. That was made perfectly clear in Bland and that is reflected in Clause 4 (5) and in Clause 58. It is one reason why the amendment tabled by the noble Lord, Lord Brennan, is, in my view, unnecessary.
	The main amendment would mean that any decision, whether by a third party, such as a doctor, or deputy, or attorney, or by the patient in advance, to provide, withhold or withdraw treatment made with the purpose of causing the patient's death would be prohibited. Where the patient's death was foreseeable, the only exception, in subsection (3), would be where the decision-maker's purpose was to avoid harm or burden to the patient.
	In the particular circumstances of Bland itself, the patient was permanently unconscious and was not being harmed or burdened by the treatment he was receiving. If the amendment were enacted, the exception would not apply and doctors would be obliged in law—I know that it is not the intention but it would be the effect—to continue to provide the treatment, perhaps for decades, as was true in the case of Tony Bland, even though it was futile, because the patient would never regain consciousness.
	Although it is not its intention, the amendment would run counter to well-established English and human rights convention legal principles, and the ethical principles they reflect, summarised in Bland by the Court of Appeal and the House of Lords, and contained in the Bill.
	Perhaps I may briefly explain and I am sorry to weary the House. It is well established that the principle of self-determination requires that respect must be given to the clear wishes of the patient so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life might be or would be prolonged, the doctors responsible for the patient's care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. A doctor must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not, whether those instructions are rational or irrational.
	The case that says that is Sidaway, which was decided by the House of Lords as long ago as 1985. That principle applies, even if, by the time the specified circumstances obtain, the patient is unconscious or no longer of sound mind. To that extent, the principle of the sanctity of human life must, the courts have made clear, yield to the principle of self-determination.
	The proposed amendment would not permit effect to be given to the patient's right to decide to refuse consent to treatment, strongly endorsed by the Walton committee in paragraph 234 of its report—for example, Jehovah's Witnesses refusing blood by an advance decision, or patients with terminal conditions who did not wish to undergo a particular procedure, such as chemotherapy to treat cancer—where death was foreseeable and where the decision-taker considered the decision to be unwise or irrational, contrary to the common law and the human rights convention, as reflected in Clause 1(4) of the Bill. Competent adults are entitled in law to refuse treatment for any reason and to decide not to undergo it.
	It is also well-established that, where an adult patient is mentally incapable of giving his or her consent to treatment, no one, including the court, can give consent on the patient's behalf. Treatment in such a case may lawfully be provided by a doctor where the treatment is in the patient's best interests. That was decided in 1990 by the House of Lords in the case of F v West Berkshire Health Authority. It is also well established in Bland and its progeny that a doctor may refuse to continue treatment where death is foreseeable but the treatment is not in the patient's best interests because of its futility.
	In my view—I am sure that the Minister will make the clarifying statements being sought—the amendment would over-rule or cause confusion, not only in relation to Bland, but, ironically, in view of what has been said by the noble Lord, Lord Brennan, in relation to the application of the double effect doctrine. That, as the noble Lord, Lord Brennan, knows better than I, was introduced by Thomas Aquinas in the Summa Theologica, when discussing the permissibility of self-defence. Killing one's assailant, Aquinas argued, is justified, provided that there is no intention to kill him. That humanitarian doctrine was brought into English law by the well-known Catholic jurist, Patrick Devlin—Mr Justice Devlin, later Lord Devlin—in his famous summing up to the jury in the trial of Dr Bodkin Adams, to explain the permissibility of action that causes serious harm, such as death, as a side effect of promoting some good end.
	Double effect concerns situations where treatment is provided—for example, treating a cancer patient with life-shortening chemotherapy or administering morphine as part of palliative care for a patient with MND—and where doctors can foresee life-shortening as a secondary effect of the treatment.
	The doctrine has its critics, none more than the noble Baroness, Lady Warnock, and including little me. But the over-ruling of the doctrine, which would be the unintended double effect of the amendment, without creating a new statutory defence to homicide, which is not contemplated by the movers of the amendment, would place doctors and nurses at risk of prosecution and patients at risk of unnecessary pain and suffering. That would be contrary to the approach of the Walton committee, which, as the noble Lord, Lord Walton, has pointed out, recognised, in paragraph 242, that the fact that treatment to relieve pain and suffering might mean that a patient's life might be shortened was no reason to withhold the treatment, as long as the doctor acted in accordance with responsible medical practice with the objective of relieving pain or distress and with no intention to kill. That represents present English law but I believe that it would be jeopardised by the amendment.
	Finally, I apologise to the House for giving my best effort as a legal opinion in order to clarify such matters for those who do not have my kind of sad life.

Baroness Knight of Collingtree: My Lords, I shall answer my noble friend's question straight away. I have not tabled an amendment in order to diminish the rights of patients but to defend and protect those who carry out their duty as a nurse or a doctor. That is what the amendment is for.
	There is not the slightest belief in my mind that anything in the amendment would in any way hamper the good care of the patient. Surely, it is obvious that anyone who is in hospital needs care. We are really not talking about advance decisions here; we are talking about food and liquid. Surely if the nurse in charge of a patient, or who has on her ward a patient, about whom it has been said, "nil by mouth", and she wants to at least moisten the mouth of the patient to make him or her comfortable, that nurse should be allowed to do that instead of abiding by the rule. If she cannot by conscience abide by the rule at the bottom of the bed, surely there would be other nurses who would do so, and she would see that the patient is cared for. We are not talking about a hard attitude towards patients; we are talking about a perfectly normal, British freedom for those who we ask to serve us.

Lord Alton of Liverpool: My Lords, I am grateful to the Minister for saying that. I will certainly let her have those details, and they will, of course, be in Hansard as well. Does she not accept, however—given everything the noble Lord, Lord Lester of Herne Hill, has said to the House about how provision already exists to protect people, and all these conscience opportunities— that if people are being discriminated against in the manner I have described, then that protection is obviously not adequate? That is why we need the kind of measure being proposed by the noble Baroness.

Baroness Ashton of Upholland: My Lords, I cannot make it any clearer than I already have. The position is as has been stated; the noble Baroness, Lady Barker, read it out. There is an absolute right of people to act within their conscience, providing that patient care does not suffer. I am sure that the noble Baroness, Lady Knight, will accept that. It is the position now and will be when the Bill is on the statute book.
	The noble Baroness cited some examples, but I do not have any such examples as I have had no letters to that effect. However, I do not take them lightly; I see them as serious. Rather like the discussions and debates that I have had with her about basic care—the question of moistening of the mouth and other issues that have deeply concerned her—the issues are not ones of legislation, but of ensuring that quality of care on the wards by the nurses, staff and others is always of the highest possible standard.
	We are not in disagreement that doctors, nurses and others should be able to act in accordance with conscience about a particular issue; that basic care should be fundamental to the way in which patients are treated at all times; that best interests are a critically important aspect of a doctor or nurse's work; or about the duty of care. We are in disagreement about whether those are appropriate matters to be put in the Bill and the implications of that. I want to take the noble Baroness through a couple of the examples.
	I want to address some situations in which a person might have a conscientious objection to withdrawing or withholding life-prolonging treatment. The first example is the obvious one, I suppose. If a person has made a valid and applicable advance decision to withhold treatment necessary to sustain life, but the doctor—it would be a doctor in this context—feels unable to follow it for reasons of conscience, he can arrange for that patient's care to be transferred to another health professional. It is vital that the care of the patient does not suffer. We have already had quoted to us the guidance from the British Medical Association and the General Medical Council on the issue.
	As I indicated, the Bill makes the law clearer and safer. If delegation is not possible to another doctor—if a suitable practitioner cannot be found—the doctor has to respect the advance decision unless he is not satisfied that it exists and is valid and applicable. If he has any doubts about the existence, validity and applicability of the advance decision under the Bill, he may treat safely in the knowledge that he will not be prosecuted for liability. Of course, a person might also have a conscientious objection to the withdrawal or withholding of treatment necessary to sustain life where there is no advance decision to refuse treatment, but where that is in the best interests of the patient concerned. That would happen only very rarely, but in such a case the person can arrange for the care of the patient to be transferred.
	The person will not be protected from liability if, for reasons of conscience, he provides treatment when that is contrary to the best interests of the patient concerned. For obvious reasons, that would not be appropriate. It must be right that we do not permit doctors to provide treatment contrary to what is in a person's best interests in those circumstances. However, I can hardly think of a case in which that might happen. The noble Baroness accepts that there will be circumstances in which, because of the nature of the patient's condition, it is better to withdraw the treatment—but not to withdraw the basic care that she has rightly highlighted so many times.
	The same rule applies where an attorney has refused consent. If the doctor objects to the attorney's decision, he must arrange for the patient's care to be transferred. Noble Lords recognise that, where the doctor has any doubts about the way in which the attorney is acting and thinks that he is not acting in the best interests of the patient, he can treat under the Bill and go to court to determine what should happen next.
	All the way through the Bill, we encapsulate what already happens. Doctors are put in a position in which they have, under the GMC and BMA guidance, the right to exercise their conscience, and do so in a way that makes sure that the patient is cared for as we would wish. We have already indicated on several occasions the critical difference between what we are talking about and basic care, which is actually the nub of what the noble Baroness is most concerned about. We recognise that, in some circumstances, withdrawing life-sustaining treatment because a patient is about to die and the treatment is of no benefit to them—or, worse, is burdensome—may be right. We have made sure that decisions are made within the clinical practice that we have outlined, as the noble Baroness, Lady Murphy, said.
	It is the doctor's right to have his personal beliefs respected and it his right not to be pressured into acting against those beliefs. In the Bill, we have the right balance between the doctor's rights to act in that way and the patient's right to decide what he would want. That is something that we would all wish to exercise in consultation with medical advice, but, none the less, to feel that we had the ability to make some decisions ourselves.
	So the amendment is unnecessary and the reason I ask the noble Baroness not to press it is because it is already there. I wrote to the noble Baroness to say that I have checked and confirmed that that is the case. I recognise that noble Lords are concerned about individual examples where things may not be going right. As I have already indicated, we will happily pursue those cases to ensure that those circumstances are looked into. However, that is not about making additions to the Bill, but about dealing with how things are working at present.
	On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Lord Christopher: My Lords, it is my happy task to speak to a long string of amendments. In different circumstances, I might have had a strong view about the grouping, because the amendments do not all fall into one piece. However, I am as conscious as any other Member of this House that we want to see this Bill passed and, therefore, I must substantially rely upon my noble friend the Minister, who has been so helpful to all of us throughout the passage of the Bill, to agree that if the House convinces her that there is some merit in some of these amendments, she will see what might be done about them even at the eleventh hour.
	I suppose that the amendments with which we have been dealing thus far relate substantially, if not wholly, to legal arguments and, indeed, matters of conscience. But all the amendments in this group are practical amendments, based upon practical experience. It would be splendid if I could claim that they were all my all unaided work, but they are not. Certainly, my practical experience over the past three years, with which I shall not weary the House again, led me to be interested in this matter. I have had considerable support from daily practitioners in the field—certainly from the master of the court, from two barristers working regularly in the field and from a solicitor, who, I heard only this morning, has been given an award for her significant contribution to elderly client work, particularly in elderly client law. So, there is no question that the provenance of these amendments is reliable.
	There is a string of amendments—19 in all—and I worked out that at five minutes per amendment we could go past ten o'clock. I shall seek to avoid that. They cover three main areas: the principles; where the burden of proof lies; and notification.
	I want to speak first about the principles. As I said on Second Reading, I support the change in the Title of the Bill from "incapacity" to "capacity", but I still believe that something was lost along the way. That is inevitable, because a different philosophy is brought to bear. I will not swear to it, but I do not believe that the word "protection" appears a great deal in the Bill. I have been told that it is "in best interests".
	The people missing are those upon whom the light is shining—the people who are not visible. Often they are not visible to their families, where things happen to them which should not. I can see no convincing argument against my Amendment No. 3. It sends a message to a number of areas: to those who are in fear of abuse that there is a court of protection and that they can be protected; to those who may put folk in fear of abuse, and abuse includes undue influence which is a most common manifestation; to those who provide carers who can be tempted into a variety of forms of abuse; and to family, friends and advisers who see abuse happening.
	The amendment should be linked with Amendments Nos. 103 and 105, which provide for visits to patients where the court has anxieties and give the court a responsibility for receiving reports from those who in good faith see something happening which they believe should not be happening.
	Amendments Nos. 30, 31, 51, 52 and 53 deal with burden of proof. The Government have put forward Amendment No. 29, but it is limited in scope and I would argue that Amendment No. 31 is needed to supplement it. Amendments Nos. 51 to 53 seek to strengthen the protection of the patient. I have a note about the wording of Clause 22(3)(b), which is much narrower than the current wording in Section 6(5)(e) of the Enduring Powers of Attorney Act 1985. The wording of the Bill on this point is derived from the Law Commission report. At paragraph 7.58, the commission states:
	"We have already recommended that an attorney under a CPA should be under a duty to act in the donor's best interests. It is therefore logical to use this terminology rather than that of unsuitability in relation to the court's power to displace an attorney".
	It thus seems that the change was more one of adapting the test to fit the language of the draft—that is Clause 17 of the Law Commission's draft Bill—rather than a wish to make a substantive alteration to the law. This aspect of the Bill was not dealt with in making decisions, nor in the report of the Joint Committee, nor, I think, in another place.
	There is existing case law on the meaning of the wording of Section 6(5)(e) of the EPA Act and in my opinion there is much to be said for incorporating an identical round of objection into the new regime. I entirely accept that as a matter of practice it makes little difference whether this ground of objection is contained in primary legislation or in regulations. However, the Law Commission intended its grounds of objection to be on the face of the Bill. Furthermore, to the best of my knowledge, there is currently no public commitment by the Government to bring forward regulations to include any wider grounds of objection.
	Perhaps I may give some examples of the practical difficulties which people face. D is an elderly lady. She has two sons—A and B. B is resident abroad. She moves out of her own house and moves in with A, and she relies on him to help her with all aspects of her affairs. After some years, she sells her house and gives all the proceeds of the sale to her son A, not realising—this rings a bell with me, I might say—that she has a substantial capital gains tax bill on her former home.
	At around the same time, she appoints A as her attorney under an EPA. Shortly afterwards, it is clear that her capacity is failing and A applies to register the power. B objects. The gift from D to A clearly requires investigation by an independent person. It is possible that it is wholly unexceptional. However, it may well be capable of being set aside for presumed undue influence as D clearly reposed trust and confidence in A, and the transaction calls for an explanation. There may also be a possibility of a gift being set aside for lack of capacity.
	As matters currently stand, the objector merely has to show to the court that the possibility of undue influence or lack of capacity exists. He does not have to prove that there was, indeed, undue influence or a lack of capacity. It is enough that he can show that there is a conflict of interest between the donor and the attorney and that someone other than the attorney should be appointed by the court to investigate the transaction.
	The possibility that the transaction may need to be set aside is enough to render the attorney unsuitable for the purposes of Section 6(5)(e). If, after appropriate investigations have been carried out by an independent person—usually an interim receiver—nothing untoward is discovered, the court may appoint the original attorney to act as receiver.
	However, if D had created an LPA, which is what the Bill provides for, instead, the court would be obliged to register the power unless the objector, B, could demonstrate that A had behaved, or was behaving, in a way that was not in D's best interests or that he proposed to act in such a way. If A denied that the gift was procured by undue influence, it would seem necessary for the objector, B, to show that there had been undue influence or that D lacked capacity to make the gift. At present, the objector would merely have to show that there was a risk but, under the Bill, he would have to take his case ultimately either to the Chancery Division or to the county court.
	I shall not go through a number of other examples that have been given to me but shall mention just one. Two brothers, one a senior civil servant and the other a university lecturer—so clearly not men of straw—were found to be unsuitable to be their mother's attorneys. Although she had appointed them to act jointly and severally, they refused to act together and neither was willing to let the other act separately. Neither trusted the other. Each was suspicious and critical of the other's actions and motives, and the impasse defeated the whole purpose of the power.
	I have two principal amendments on notification—Amendments Nos. 23 and 27. At this point, again I thank my noble friend the Minister for the two occasions on which she met the small group of us who have been considering the Bill. I remember that on one occasion she was quite animated because she said that there had been changes in society and families were not now essentially relevant in this context. I accept that that is not what she said but that it is a very poor paraphrase of it.
	I question whether it is wrong to leave out families. I suppose that in practice families would largely be written in anyway by the person making the act. But it is not always like that. The practitioners tell me that it is the ones that do not fit the norm that cause the real problems unless one ensures that something is done about it. That is especially important where the family is driven away. I am told that that is far more common than is imagined. Manipulative people seeking undue influence will, one way or another, drive families and friends away. I have personal experience of that.
	I have produced a list. The noble Baroness is not keen on lists—neither am I when it comes to European elections. But the list follows that for intestacy. It seems to me that if that is what the law would say on intestacy, perhaps the law should say it when there may not be—or someone is seeking to do something to replace a person's capacity.
	If I can believe what I read in the press, we also face the prospect, following the general election, of a new approach to civil partnerships being in line for change. There could be major complications unless we think carefully about this now. There are difficulties now in partnerships—not least in the area of pensions, as many of us who have had anything to do with that field will know. Will civil partners be left out like families are under the Bill? If so, I suggest it is wrong.
	In Amendment No. 27 I have sought to meet the Minister's very genuine anxieties. In other words, the court may dismiss the reference to the family if the court is satisfied that no useful purpose is served by giving notice.
	I do not wish to pursue the matter further; I simply want to say that this is a very important Bill; I support it and want to see it receive Royal Assent. I hold the view that the code, when we see the draft, may well be as important as the Bill itself. I hope that the many issues that cause us anxieties are in the code. The issues that I have raised, aside from the consequentials—of which there are several—are the genuine concerns of practitioners in the field. They are not dreamed up as theories. They are not things that arose specifically from my own experiences, although they were all reflected in that. As I said at the beginning, when the court master expresses anxieties and gives his full support to all these amendments, and two barristers and a practising solicitor in the field do the same, it seems to me that there is something here which we should address and try to do something about before it is too late. I beg to move.

Baroness Ashton of Upholland: My Lords, perhaps I may first say to my noble friend that I am sorry if the grouping took him by surprise. We thought that it hung together. Something that I will not forget about this Bill is the happy sessions that I have had with my noble friend and his band of advisers who have been fantastic in allowing me to say what I think and test out various ideas, and who have then come back to me on them. I thank my noble friend for that because it has been extremely valuable.
	I shall go through the core of these amendments, but I believe that I shall have the opportunity to talk to Master Lush—who has not been to see me yet—in the next 24 hours. I shall continue to look at this matter until Third Reading to determine whether there is anything further that we should do. Behind what my noble friend and the noble Baroness, Lady Baker, has said is the desire to ensure that we provide as much protection as possible, which I think that we have covered in the Bill. I shall therefore go through the points briefly, with the proviso that I have already given. When I talk to my noble friend outside your Lordships' House, perhaps he will be more reassured.
	The Bill already achieves that kind of protection from abuse. Under Clause 1, there is the requirement that all acts and decisions made must be done or made in P's best interests. I do not think that any act or decision could ever be in P's best interests if it resulted in P suffering any kind of abuse.
	We know that there have to be safeguards for the vulnerable. I know that my noble friend's fears for the elderly vulnerable are the motivation behind the amendments to Schedule 1 and the desire to preserve the entitlement of relatives to receive notice of the application to register the LPA. I was grateful that my noble friend corrected himself.
	I said that families are different. I did not say that they were not very important. I simply said that families are not what they used to be. We have lots of different kinds of families. People have many strong relationships—for example, half-siblings, step-children, and different situations within families. I would like my noble friend to accept that his amendment would make this quite difficult. As noble Lords who have heard me speak on any previous Bill will know, I have a difficulty with lists, as they inevitably mean that people are left out and things are not dealt with appropriately.
	I am also very clear that this provision is about the donor making a choice. Ultimately, the donor should say who they would like to have notified. It could be a relative, but there may not be any relatives around or the donor may be estranged from his or her family—so there would be little point in notifying a relative. Just because someone is related does not necessarily mean that he will care anything for the donor. He may even have his own selfish motives for showing an interest in trying to object to the donor's chosen attorney.
	So the Bill provides freedom of choice, but it does not lose sight of protection. My noble friend has made it clear that he is worried about the coercion or pressure that could be put on someone to give a decision-making power to a person through a lasting power of attorney.
	That is why the Bill provides that all applications to register a lasting power of attorney must be accompanied by a certificate from a person of prescribed description that, in his opinion, the donor understands what he is doing and that no fraud or undue pressure is being used to induce the donor to create that lasting power of attorney. It goes one step further than that. Where there is no named person, regulations may require two certificates of that kind to be provided. This is the balance that I feel we have struck within the Bill: freedom and protection working in tandem.
	My noble friend's amendment to Clause 22 seeks to add to the grounds of objection an attorney's unsuitability. One person's suitability is another person's unsuitability. My noble friend's idea of unsuitability may not be mine. I suspect that a cross-section of society would turn out a very interesting set of ideas. However, I want to reassure my noble friend that the Bill already addresses these concerns. It adds clarity and creates a straightforward test: that if the donee or attorney has behaved, is behaving or even proposes to behave in a way that contravenes their authority or would not be in the donor's best interests, the court can direct the lasting power of attorney not to be registered or, if it has already been registered, it can terminate the appointment of the attorney. It is a good test that deals with the issue raised by my noble friend.
	In addition, paragraph 12 of Schedule 1 provides for certain grounds of objection to registration to be prescribed. We shall of course be consulting on what those grounds should be. Although I do not want to pre-judge the outcome, it may well be that unsuitability, properly defined, will be one of those grounds. That might help to provide the kinds of checks and balances for which my noble friend is looking.
	I turn now to my noble friend's amendments to Clause 56 which relates to the functions of the Public Guardian. My noble friend is seeking to add to the Public Guardian's functions by requiring him to bring under his umbrella not only his clients under the Bill—lasting powers of attorney donors, attorneys and deputies—but any person who, because they may lack capacity, will be vulnerable or subject to physical or financial abuse.
	Of course we want people, as part of a caring society, to be able to report their concerns about someone they feel may be at risk from abuse. People can do this now through other bodies and I can reassure my noble friend that if the Public Guardian receives any such concerns—we have discussed this in the past 24 hours—they will be referred to the most appropriate agency, whether that be the police, local authority social services or other bodies.
	As drafted, the difficulty would be that the amendment would have very wide implications for the Office of the Public Guardian because it could mean the Public Guardian would be given the inappropriate responsibility of directing a Court of Protection visitor to visit anyone about whom he may have received a report, whether a client or not.
	The Public Guardian will have a client base and, what is more, a register of some of the most vulnerable people. He has already been given the function of receiving representations, including complaints, about the way in which a deputy or attorney is exercising his powers. Widening the scope of the Public Guardian's function in this way would, I fear, create duplication of effort and could cause unnecessary confusion and dispute between those with a remit for social care, which rests firmly with the Department of Health, and local authorities with social services functions.
	I want to reassure my noble friend again that the Public Guardian will work together with other agencies to respond swiftly and in a co-ordinated way to any allegations of abuse that come his way.
	We believe that this co-operation, together with the new improved safeguards for lasting powers of attorney, will ensure that people are further protected from risk of abuse. It seems to me that the Bill therefore provides new and improved protection for vulnerable people whilst safeguarding the right of someone with capacity to choose the person they want as their attorney. That seems to me to be the right balance of empowerment and protection. On the basis of what I have said, I hope my noble friend will feel able to withdraw his amendment.

On Question, amendment agreed to.
	Clause 4 [Inability to make decisions]: